L Clegg (applicant)
O Fagir (respondent)
File Number(s): 2017/121922
[2]
Judgment
I indicated before the short break that it seemed to be incumbent upon the Commission to give an ex tempore decision in respect of the matters argued before it this afternoon, so that the parties would know where they stand in respect of proceedings which are to run next week before this Commission and, for that reason, whilst had I retired and written a decision over the weekend it may have been longer in content, I propose to clothe what I say with sufficient reasons the parties can understand the basis on which I have come to the views to which I have come.
Before the Commission is an unfair dismissal application brought pursuant to s 84 of the Industrial Relations Act 1996. That application is to be heard next week, extending over two days. An issue has been raised - and I make no complaint about the fact that it has been raised belatedly, because it was proper that it be raised at the point when the respondent's evidence had gone on - asserting, in the first instance, that an issue estoppel arose.
That was said to arise from a decision given by Judge Ingram in the District Court, involving the applicant in these proceedings as an appellant against a conviction for assault occasioning actual bodily harm in a Local Court, the appeal being heard in the District Court.
In the course of proceedings today, a second limb of argument was advanced by counsel for the applicant, that is that the respondent's evidence in whole or part constituted an abuse of process and that the Commission being obliged to hear that evidence again and determine it would be an element of that abuse of process.
It is perfectly clear that in the District Court Judge Ingram found the evidence of one of the Crown witnesses, who again is to be a witness in these proceedings and, to some extent that of another witness, as I read what the judge had to say, as less than reliable. I understand that. It is also clear that the judge acquitted the appellant, who is the applicant here under s 84, by way of a Prasad direction and the parties know what that means and I will not elaborate on it now.
In the course of so doing, the judge held that the Crown could not make out its case because it could not defeat an alternative hypothesis for the injuries suffered by a Mrs Larkins who was said to have been injured by reason of the applicant's undue use of force. I note that the judge did not find, although at one point during the proceedings today it was suggested to me and then withdrawn, that there was, in fact, no bruising to be found on the person of Mrs Larkins.
The elements of the issue estoppel, and I draw them from the decision of the Court of Appeal in Charafeddine v Morgan [2014] NSWCA 74 are these, their Honours in that matter drawing, unsurprisingly, on the well-known decision in Blair v Curran (1939) 62 CLR 464. What they said was, quoting that case, this:
"A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."
I do not understand that that principle of law has been departed from by any court, including the High Court, since Blair v Curran, certainly not since Charafeddine.
Accordingly, I proceed on the basis that those are the elements of an issue estoppel that are to be made out.
I will say now that, in my view, issue estoppel is not established. It is clear that an acquittal does not create an estoppel, but the estoppel was not argued on that basis for the applicant here; it was argued on the basis of the findings of fact and law made by Judge Ingram in the District Court.
There are two reasons why, in my view, there cannot be an issue estoppel here. There may be others but these two, in my view, determine the matter.
The first is this; there is Supreme Court authority for the proposition that an issue estoppel simply cannot arise where the one proceeding is criminal and the second is civil. That is because the difference in the onus of proof prevents the issues being the same. In Blair v Curran and Charafeddine the court held that the issues must be identical. They cannot be where the onus in the two matters is different, on the authority of Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.
Counsel for the applicant argued that because of the Prasad acquittal the nature of the proceedings were so different that Litchfield would not apply. With respect, I cannot agree with that. The District Court proceedings were, nevertheless, criminal proceedings and they were, as the judge makes it abundantly clear throughout his decision, decided by a failure of the Crown to reach what was required of it at the criminal standard of proof.
Accordingly, if the issues cannot be the same, for reason of the authority in Litchfield, then there cannot be an issue estoppel.
There is a second reason, in my view, why an issue estoppel cannot lie and that is because it requires an identity of the parties. In my opinion, the Crown, as a prosecutor of criminal proceedings, and the Local Health District do not have identity of parties and, in my view, the provisions of the Crown Proceedings Act 1988 do not, as they were argued to do, bring them any closer to being that.
One sees what was said in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507, where the plurality held, at p 521, speaking of the principle of privity of parties:
"Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding ("A)" can be privy in interest",
and I will interrupt the quote to say the other two possible elements of privity emphasised by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 cannot possibly apply here; here there could only be argued to be a privity of interest. I resume the quote:
"Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding ("A") can be privy in interest with a party to an earlier proceeding ("B") on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A."
The second of those obviously falls away.
It was put to me, with vigour, by counsel for the applicant here that in fact the respondent here did have a legal interest in the outcome of the earlier proceeding. I cannot agree. I cannot see that the respondent, notwithstanding that its employees gave evidence in a proceeding, notwithstanding that it was required to report the incident under a statutory or regulatory obligation, which it did, and which appears to have generated at least the initial charge against the applicant, had any legal interest in the outcome of the criminal proceedings. Nothing was brought against the respondent and no decision made in either the Local Court or District Court had any legal binding effect upon it.
I readily understand that the respondents took no action against the applicant here until after the first set of criminal proceedings were concluded. That seems to me to be simply a product of proper management insofar as to do otherwise, to attempt to investigate a matter at a civil level with a criminal matter outstanding, would have been totally unfair to the applicant. It was not done and it seems to me proper that it was not done. But that does not give rise to any legal interest in the respondent in the outcome of the criminal proceedings. Therefore, there is no privity and, therefore, on that second limb, the proposition that an issue estoppel lies must necessarily fail. I form that view without examining the other elements of the issue estoppel; those two suffice.
I then turn to the question argued today that it would be an abuse of process, in the face of the finding that Judge Ingram made that one and, in part at least, another of the respondent's witnesses here gave evidence before the District Court that he could not give the appellation of reliable, to allow them to come and give evidence again. The more so, it was said to me, and I was assisted in this submission by an aide memoire drawn up by counsel for the applicant, when it can be said that they gave evidence in the earlier proceedings inconsistent with these proceedings. That is, inconsistent with the evidence that they advance in written statements required to be put on in these proceedings by directions of this Commission.
I was troubled by that proposition and I queried counsel for the respondent about it at some length because it seemed to me that, as a model litigant, the respondent ought not put itself in a position where it might be seen to be advancing evidence contrary to sworn evidence given by the same witness in earlier proceedings.
When I look closely at the aide memoire of the evidence and, as I have been able to briefly, the statements actually advanced, I am not entirely satisfied that the evidence is, in every respect, congruent. However, I know of no authority and I was taken to none, which would allow me, outside a finding of an estoppel, to simply preclude the party from putting on evidence in its case.
I have drawn the respondent's attention, with some vigour, to the consequences that would occur for it as a model litigant if it were found that it had consciously advanced evidence which was unsustainable as contrary to evidence given in earlier proceedings. I am satisfied that that warning has been taken, at least I hope that it has, but I know of no basis on which I could, in the context of s 84 proceedings before me, preclude a respondent, not an applicant, a respondent from bringing evidence about the single incident which has given rise to the dismissal which is said by the applicant to be unfair.
In my view, to so rule, in the absence of some authority that gave me an ability to do so, would be itself an abuse of process and I do not find that I can do so. Accordingly, I will make no direction that the respondent is limited in its evidence. The evidence will have to be tested. If it emerges that the evidence is unreliable, that will have certain immediate and direct consequences of a greater or lesser degree in the respondent's case, but that is not a matter that I could conceivably determine today.
To make a finding that the evidence is inconsistent, without it being tested and without hearing the evidence, would, in my view, be unsound and contrary to my obligations as a judicial officer. So, as I say, I do not propose to take any step of limiting or curtailing the filed evidence by the respondent.
Those are my rulings upon whether or not an issue estoppel appears. I was not pressed today to refer the matter to the Supreme Court as a matter of law, a course suggested in the correspondence that led to the Commission listing the matter. I do not propose to do so. I see no purpose in doing so. I regard the Commission as generally constituted as being perfectly able to deal with a question of law of the kind advanced today.
It follows that I propose to hear the evidence of the parties as has been filed and served in proceedings before me. This is a decision which, I think, is interlocutory in nature but the parties will have to take their own advice about that matter.
[3]
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Decision last updated: 23 March 2018
Parties
Applicant/Plaintiff:
Wright
Respondent/Defendant:
Secretary, Ministry of Health in respect of Western NSW Local Health District